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Legislative Background: Medical Assistance in Dying (Bill C-14, as Assented to on June 17, 2016)

Part 3 – Relation to Quebec’s Law

The National Assembly of Quebec passed Bill 52, an Act respecting end-of-life care, on June 5, 2014. The Act came into force 18 months later, on December 10, 2015. The legislation was the end result of a significant amount of study, consultation and deliberation that commenced with the creation of the Select Committee on Dying with Dignity in late 2009. The Committee’s work lasted for two years, and involved:

hearings with 32 experts (February/March 2010);

the release of a public consultation paper in May 2010 (6,558 responses and 273 briefs were received between May 2010 and July 2011);

public hearings (239 individuals and groups over 29 days in 8 cities from September 2010 to March 2011);

21 meetings with experts in Europe (in June 2011); and,

committee deliberations over 51 meetings (from June 2011 to March 2012).Footnote 51

The Committee tabled its report in March 2012, recommending that a new form of care, to be called “medical aid in dying”, be “part of the end of life continuum of care”.Footnote 52 They further described specific criteria that should be met, and that these “be clear and specific so as to facilitate assessment, but general enough to allow doctors to use their professional judgment in each case.”Footnote 53

Specifically, and in addition to criteria requiring that the patient be at “end of life” and suffering unbearably, they recommended that the patient be “in an advanced state of weakening capacities, with no chance of improvement”. Justice Smith of the Supreme Court of British Columbia, who presided over the Carter case at trial, expressly adopted this criterion, referencing the Select Committee’s report, when she ruled that “the reference to ‘grievously and irremediably ill persons’ should be limited to those who are also in an advanced state of weakening capacities, with no chance of improvement.”Footnote 54 The Select Committee’s recommendations were ultimately adopted into Bill 52, which was introduced in the National Assembly in June 2013, and was adopted in June 2014.

In general, the eligibility criteria in the Criminal Code are similar to those under Quebec’s An Act Respecting End-of-Life Care.Footnote 55 On the one hand, the criminal legislation is intended to be broader in terms of the temporal connection between the person’s medical condition and the anticipated timing of their deaths; Quebec’s law requires that the patient be “at the end of life”, whereas the criminal legislation uses the term “death has become reasonably foreseeable”, which is a more familiar legal concept, and possibly more flexible, in that it does not require a specific prognosis as to the length of time that the person has left to live. On the other hand, the Quebec legislation does not expressly require that the unbearable suffering be caused by the person’s medical condition, whereas the criminal legislation does. It should also be noted that the Criminal Code amendments allow both assisted suicide and what is commonly called voluntary euthanasia, while Quebec’s law only permits the latter.

Part 4 - Statement of Potential Charter Impacts

The Minister of Justice has reviewed this Bill for compliance with the Constitution, including the Charter in accordance with her obligations under section 4.1 of the Department of Justice Act. This review included consideration of, amongst other things, the objectives and features of the Bill as described above in Part 1, the social science evidence and legislative, governmental and consultative reports referred to in Part 1, the evidence of other jurisdictions’ approaches to and experiences with medical assistance in dying discussed in Parts 2 and 3, and the views and findings of the courts in Carter, including the Supreme Court of Canada.

The following non-exhaustive list of potential impacts on the rights and freedoms guaranteed by the Charter is presented to assist in informing the public and Parliamentary debate, and consequently to better enable the dialogue between Parliament and the courts. In addition, the Minister of Justice tabled an Addendum to this Legislative Background in the House of Commons and published it on the Department of Justice website. This Part of the Legislative Background should therefore be read together with the Addendum, which provides an explanation of the government’s position on the constitutionality of the new legislation, as well as the rationale for the approach in Bill C-14.

Restricted to Individuals whose Deaths have become Reasonably Foreseeable

Restricting access only to persons whose deaths are reasonably foreseeable has the potential to impact:

section 7 of the Charter, which protects against deprivations of life, liberty or security of the person that do not accord with the principles of fundamental justice, and;

subsection 15(1) of the Charter, which protects against discrimination on numerous grounds, including disability.

The rights to liberty and security of the person could be impacted by depriving persons suffering intolerably of lawful assistance to end their lives. This could impact the section 7 Charter rights of those who are suffering intolerably as a result of a serious and incurable condition, but whose natural death is not reasonably foreseeable. This could include individuals suffering only from a mental illness, and individuals with physical disabilities who lack the physical capacity to end their own lives. Persons with mental illness or disabilities would only have access to medical assistance in dying if they meet all of the eligibility criteria.

The right to equality could also be impacted if restricting access to end-of-life situations is viewed as treating people differently on the basis of their distinct disabilities, diseases or illnesses. For example, a person who is suffering intolerably from a particular disease that does not make death reasonably foreseeable, will be treated differently in terms of access from persons whose intolerable suffering derives from a different disease that does make death reasonably foreseeable. The restriction may also be viewed as treating people whose disabilities may make it effectively impossible to die by suicide without assistance differently from individuals who are able to take their own lives without the criminal law standing in the way.

Rationale: Restricting access to only those individuals whose death is reasonably foreseeable allows them to choose a peaceful, medically assisted death where their medical circumstances are such that the dying process would otherwise be painful, distressing, frightening, prolonged or otherwise lacking dignity from their perspective. This approach respects autonomy during the passage to death, while otherwise prioritizing respect for human life and the equality of all people regardless of illness, disability or age. It also furthers the objective of suicide prevention and the protection of the vulnerable. Recognizing the complexity of the legal and social issues associated with medical assistance in dying, this approach strikes an appropriate balance between the competing rights, interests and values. This last consideration also applies to the other potential impacts discussed below.

Restricted to “Competent” Adults (no advance directives)

Restricting access to competent adults precludes the possibility of a person arranging medical assistance in dying by advance directive, which could impact the section 7 rights to life, liberty, and security of the person, and the subsection 15(1) right to equality.

Section 7 could be impacted because persons dealing with the prospect of intolerable suffering could be faced with the choice of ending their lives earlier than they would otherwise want (by suicide or potentially by seeking medical assistance in dying) or risk permanently losing access to medical assistance in dying once they no longer have capacity.

Equality rights under subsection15(1) could also be impacted because persons whose disability, disease or illness cause them intolerable suffering and deprive them of the capacity to consent would not be able to access medical assistance in dying in the same circumstances as those whose disability, disease or illness do not deprive them of that capacity.

Rationale: Advance directives generally do not provide reliable evidence of a person’s consent at the time that medical assistance in dying would be provided. The requirement that a person be capable of consent at the time of the request for assistance provides better protection for vulnerable individuals, in particular when their present state of mind and/or suffering cannot be conclusively determined. It also guards against the effects of inaccurate assumptions about the quality and value of life in certain circumstances.

Restricted to Adults (excludes mature minors)

Restricting access to adults (at least 18 years old) could impact the rights of “mature minors”, in particular their section 7 rights to life, liberty and security of the person, and their subsection 15(1) right not to be discriminated against based on age. Mature minors are recognized as having the right to a degree of autonomy in relation to their medical treatment in some circumstances.

Rationale: Limiting access to adults serves to protect children, who are particularly vulnerable both by virtue of their age and their disability, disease or illness. Establishing a clear age cut-off in relation to access to medical assistance in dying, rather than adopting an approach based on an individualized assessment of maturity as is done in relation to decisions to refuse medical treatment, is justified in light of the unique interests at stake. Respecting a mature minor’s refusal of further unwanted medical treatment is not the same as acquiescing to a request for active measures to cause death. Acknowledging that further study will be undertaken on potential access to medical assistance in dying for mature minors, including on the need for and adequacy of additional safeguards to protect mature minors if they were to have access to such assistance, the Bill appropriately balances the various important interests.

Sufficiency of Safeguards to Protect the Vulnerable

If the safeguards are inadequate to prevent abuse or error, it could impact the section 7 rights to life or security of the person of vulnerable persons. It could be that section 7 obliges Parliament to maintain effective criminal prohibitions against the intentional taking of life, and in this context to implement robust safeguards to prevent against abuse and error. This would be a novel claim under section 7.

Rationale: Parliament’s duty to maintain effective criminal prohibitions against the intentional taking of life is inherent in its role as lawmaker. The Bill strikes an appropriate balance between protecting the vulnerable, and ensuring accessibility to those qualified individuals who want medical assistance in dying. The most vulnerable are excluded from accessing medical assistance in dying, while proper safeguards aim to ensure only those qualified persons who consent will receive medical assistance in dying.

Healthcare Providers’ Freedom of Conscience

The decriminalization of medical assistance in dying will lead to requests to healthcare providers to provide assistance that would be contrary to some healthcare providers’ conscience or religious beliefs. Freedom of conscience and religion are protected from government interference by paragraph 2(a) of the Charter. Nothing in the Bill compels healthcare providers to provide such assistance or could otherwise impact their paragraph 2(a) rights.

Excessive Burden of Safeguards unduly Limiting Access

If the safeguards are so burdensome as to unduly limit access to medical assistance in dying to those who qualify, it could impact their section 7 rights to life, liberty or security of the person.

Rationale: The Bill strikes an appropriate balance between protecting the vulnerable, and ensuring accessibility to those qualified individuals who want medical assistance in dying. The safeguards are reasonable and appropriate to ensure that individuals meet the criteria for eligibility, and most importantly to validate their intent and consent.

Witness Requirements

The requirement that individuals seeking medical assistance in dying have two witnesses to their signed, written request, could impact the right to privacy protected by section 8 of the Charter. In some circumstances, individuals may be obliged by this requirement to disclose their intention to end their lives to individuals in whom they would otherwise not confide.

Rationale: In light of the very important interests at stake, a requirement that an individual seeking medical assistance in dying have their signed consent for such assistance witnessed by two independent individuals is reasonable in the circumstances, even when the fulfilment of that requirement may incidentally compel the disclosure of private information. Such a requirement is also consistent with Canadian legal practices and traditions when signing legal documents of significance.